First National Bank of Hollywood v. Freedman

244 So. 2d 183, 1971 Fla. App. LEXIS 6993
CourtDistrict Court of Appeal of Florida
DecidedFebruary 9, 1971
DocketN-539
StatusPublished
Cited by4 cases

This text of 244 So. 2d 183 (First National Bank of Hollywood v. Freedman) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First National Bank of Hollywood v. Freedman, 244 So. 2d 183, 1971 Fla. App. LEXIS 6993 (Fla. Ct. App. 1971).

Opinion

244 So.2d 183 (1971)

FIRST NATIONAL BANK OF HOLLYWOOD, Plaintiff,
v.
Norman P. FREEDMAN, Defendant.

No. N-539.

District Court of Appeal of Florida, First District.

February 9, 1971.
Rehearing Denied March 3, 1971.

*184 Ellis E. Neder, Jr., of Sears, Dunlap & Sears, Jacksonville, for plaintiff.

Norman P. Freedman, Jacksonville, for defendant.

WIGGINTON, Acting Chief Judge.

This case is before the court on a question involving a proposition of law certified by the Circuit Court of the Fourth Judicial Circuit to be determinative of the cause and without controlling precedent in this state. We accept the certification and will proceed to render our decision thereon in accordance with the provisions of Rule 4.6, Florida Appellate Rules, 32 F.S.A.

The controlling facts have been stipulated to by the parties and are not in dispute. On December 24, 1964, defendant Freedman made, executed, and delivered to plaintiff, First National Bank of Hollywood, his promissory note in the sum of $75,000, payable on demand and bearing interest after date at the rate of five percent per annum, payable quarterly, until paid. On August 25, 1965, defendant made, executed, and delivered to plaintiff his additional promissory note for $36,500, payable sixty days after date with interest after date at the rate of five percent per annum until paid. A copy of each note is attached to and made a part of the certificate filed herein.

After both of the foregoing promissory notes became due and payable, plaintiff instituted an action at law against defendant seeking recovery of a judgment only for the interest due on each of the notes from their respective dates of execution. A final judgment was rendered in plaintiff's favor against defendant without contest on June 23, 1967, for all interest which had theretofore accrued on both notes.

On December 17, 1968, plaintiff instituted two separate actions against defendant, each for the purpose of recovering a judgment for the full unpaid principal sum due on each promissory note together with interest which had accrued from the date of the prior interest judgment on June 23, 1967. To each of these suits defendant answered denying the indebtedness claimed and interposing the defense that the judgment previously obtained by plaintiff against defendant for interest only on the same promissory note now sued upon constituted a complete bar to the action. The two suits were consolidated for the purpose of trial and upon consideration of the question or proposition of law on which the court's ultimate decision must turn, the Circuit Court of its own motion certified the following question for our consideration, to wit:

QUESTION

DOES THE SECURING OF A JUDGMENT FOR THE INTEREST THEN DUE ON A DEMAND NOTE BAR A LATER SUBSEQUENT SUIT FOR THE PRINCIPAL, ALTHOUGH IT WAS DUE WHEN THE ACTION FOR INTEREST WAS COMMENCED?

From the foregoing question there emerges the single proposition of law of whether the principal indebtedness evidenced by a promissory note and the interest due thereon, after maturity, must both be recovered, if at all, in a single action, or whether each may be recovered at different times in separate actions. It is the contention of plaintiff that the promise to pay interest contained in each of the promissory notes constitutes a separate and distinct cause of action and that a suit brought to recover only the accrued interest, after maturity, does not operate as a bar to the right of the holder to sue for recovery of the principal and subsequently *185 accrued interest in a later action. On the other hand, it is defendant's contention that interest due on a promissory note after maturity merges with the principal sum due and constitutes one single and indivisible demand, recovery of a part of which bars a subsequent action for the whole under the principle of law which prohibits the splitting of a cause of action.[1]

Although our research has failed to reveal any precedent in Florida which could be considered as controlling in resolving the question here considered, the proposition of law has been passed upon by courts of other jurisdictions. The majority of these courts appear to have held that where interest is reserved in a promissory note, it constitutes a separate and divisible covenant to pay to the same extent as the covenant to pay the principal sum and each may be made the subject of separate demands even after maturity. These courts hold that the recovery of a judgment for a part of the debt after maturity does not bar a separate demand for the whole.

In the early case of Sparhawk v. Wills,[2] Sparhawk made, executed, and delivered to Wills his promissory note in the sum of $4,000 payable in one year with interest payable annually. After the note matured Wills brought suit against Sparhawk only for the accrued interest then due on the note and recovered a judgment which was paid and duly satisfied. Sparhawk then brought suit to redeem the note without tender of payment of the principal amount due on the ground that the debt evidenced by the note had been paid. Sparhawk insisted that the note was an entire contract, not divisible, and that the holder having obtained one judgment on it into which the entire debt merged, payment of the judgment constituted payment of the debt in full. In rejecting this contention, the court said:

"* * * The contract thus assumes a very simple form: `I promise to pay the debt in one year; but if I do not, I will pay the interest at that time, and so at the end of each and every year until the debt is paid.' Being a promise to pay the debt at one time, and, contingently, to pay the interest at another or some other times, it must be construed as containing distinct promises, giving several causes of action; and these being several in their origin, no subsequent event can make them one and entire. * * *"

In Dulaney v. Payne[3] the plaintiff holder of a promissory note given him by defendant brought suit to recover the principal amount due together with accrued interest. The principal was payable twelve months after date with interest from date, payable semi-annually. The defendant maker interposed a plea of former recovery and contended that a judgment recovered by the plaintiff against defendant in a prior suit for accrued interest on the note after maturity barred the present action by which the maker sought to recover the unpaid principal sum due together with subsequently accrued interest. The court recognized the well-settled law to be that a party cannot divide an entire demand or cause of action and maintain several suits for its recovery. It also recognized the proposition that a recovery for a part of an entire demand will bar an action for the remainder if due at the time the first action was commenced. The court observed that what constitutes an entire or single demand is often a question of much difficulty, and the decisions of different courts are in disharmony on the question. In holding that the recovery of a judgment in the prior suit for accrued interest on the note after maturity did not bar the subsequent action in which recovery was sought for the unpaid principal sum due together *186 with subsequently accrued interest, the court said:

"* * * In the discussion of this question, Freeman on Judgments, § 238, says: `A note payable in one year, with interest payable semi-annually, comprises two distinct contracts, — one to pay the principal sum, and the other to pay the interest.

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Cite This Page — Counsel Stack

Bluebook (online)
244 So. 2d 183, 1971 Fla. App. LEXIS 6993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-of-hollywood-v-freedman-fladistctapp-1971.